Sunday, September 06, 2009

By Kishali Pinto Jayawardane / The Sunday Times - It was a week dominated by the unprecedented sentencing of senior journalist JS Tissainayagam to twenty years hard labour under the Prevention of Terrorism Act (PTA) No 48 of 1979 (as amended) and prevalent Emergency Regulations for the writing of two articles in a journal some years back.

A third charge related to the obtaining of funds to run that journal, thereby constituting the collection of monies for the furtherance of terrorist acts.

In this manifestly tragic drama, there was still time to marvel at the exact comedy of the Ministry of Foreign Affairs' claims that President Mahinda Rajapaksa cannot pardon Tissainayagam at this stage until the legal process was exhausted. It was further asserted that the widespread condemnation, both domestic and international, was an attempt at "undermining the independence of the judiciary of Sri Lanka." Clearly the terminology used by the Ministry hinted at the use of contempt of court powers.

The matter of a presidential pardon

In the first instance, those responsible for writing these press releases at the Ministry are well advised to acquaint themselves with the relevant provisions of the Constitution, namely Section 34(1) which grants the President the power to pardon any offender "convicted of any offence in any court within the Republic of Sri Lanka."

Mark in this regard the significance of the term 'any' in this constitutional provision making it clear that the question of presidential pardon does not limit itself to the stage of final appeal. Among other cases in this respect, recently, President Mahinda Rajapaksa himself pardoned CWC leader Arumugam Thondaman in 2008 after Thondaman was found guilty of contempt of court and imposed a suspended sentence by the Nuwara Eliya Magistrate. So, the question then becomes appropriate; is the Ministry then taking upon itself the power to limit the constitutional authority of the President?

This matter of a pardon is, of course, by the way. Tissainayagam has not himself asked for a pardon. The granting and acceptance of a pardon implies that the offender has accepted the fact of his or her guilt and the applicability of such to this case is not all that easy.

Contempt of court

A critique of the decision by the High Court on the basis of which Tissainayagam was sentenced, must await detailed scrutiny of the decision itself. However, the point must be made - and made strongly at that - that such critiques cannot offend the principle of contempt of court if they are based on a valid and reasonable examination of the legal basis on which the judgment had been delivered.

It is precisely for the purpose of meeting such absurd attempts at stifling freedom of expression, where ordinary folk are at sea on the parameters of the law that a draft Contempt of Court Act was approved by the Bar Council of the Bar Association some years back and sent to the government. This specifically stipulated that fair and reasoned criticism of decided judgments (even of the lower courts) do not amount to contempt of court. A similar stand has been taken by others, including the Editors Guild of Sri Lanka and the Human Rights Commission of Sri Lanka (in its previous term).

This principle is not, by any means unusual. It is followed as a matter of fact in countries such as India and the United Kingdom. In developed jurisdictions, a claim that fair critique of a judgment of a lower court would amount to contempt would invoke extreme hilarity if not amazement. We, on the other hand, still continue to struggle with this most basic right of free expression and opinion, forcing many analysts to tiptoe around issues that should be discussed forcefully, angrily and honestly

Symbol of subversion of law

But to revert to the central issue of the Tissainayagam case and more particularly the fact that his defence counsel was absolutely right when he warned in court that the fate which had befallen his client was directed at every other critic of this government. In other words, what we have here is a symbolic and highly potent warning, restricting even the remaining and terribly narrow spaces that exist to speak freely and write freely. The wide range of weapons used in this respect includes not only the detaining, killing and jailing of critics but also character assassination of the most foul kind.

The anti-terrorism laws

The entire saga of Tissainayagam's detention, (for some months without being formally charged) occurred in a particular context, the validity of which would no doubt be argued in the higher appellate courts. This deserves detailed scrutiny in a critical analysis of the High Court judgment itself.The question of his alleged confession is yet another facet of this problem. Tissainayagam's purported confession was relied on by prosecutors to allege that he had obtained monies from sources linked to the LTTE. The defence contended that this charge was based on a coerced confession from Tissainayagam which had anyway been tampered with and was inherently contradictory on manifold points.

For years, successive governments have been called upon in vain to ensure that these confessions, in many cases, obtained through physical or mental duress, are not admitted. The safeguard that a court may rule upon their admissibility is obviated by the fact that the burden is on the accused to prove that the confession was made under duress. Bringing about a balance in the law in this respect now seems more far distant than at any other point in the past.

Courage under fire

One picture that I saw of JS Tissainayagam this week showed him managing a smile at the camera. This is the indelible picture of a journalist, ethnic Tamil as he is, being sentenced for expressing his opinions in this paradise isle where (apparently) we have now seen the dawn of a new age with no minorities or majorities.

This is a telling picture indeed for those in the media who strive with all their might and main, most unsuccessfully, I may add, to prevent honest criticism of the most profound injustice. It is to be hoped that in time, they will get their due deserts if their own invective has not already crucified them.

But make no mistake about this, those responsible for what has happened to Tissainayagam today include not only the operators of a deeply subverted system which detained and indicted him under draconian anti terrorism laws. Rather the responsibility must also be borne by those journalistic hacks masquerading as his 'colleagues' and his 'friends' who give covert impetus to the totalitarianism of those in government, weep as they may crocodile tears at what has befallen him.

One major part of this totalitarian drive, (and I use this term quite deliberately), is to subvert and corrupt the law, be it by detaining and indicting journalists under subversive anti terrorism laws in one instance or by papering over patterns of extra judicial executions and enforced disappearances through corrupted Commissions of Inquiry in another instance. Critics who expose these cover-ups are then subjected to scurrilous abuse of the worst kind.

In a very fundamental sense therefore, some within the media community are very much to blame for the terror that now plagues the media to the extent that to practice true journalism today would invite the worst retribution of its kind. Tissainayagam is among many who are paying the price. As to how many more would be added to this list in the future remains to be seen.

Sunday, September 06, 2009

LAHORE: The South Asia Media Commission (SAMC) on Friday condemned a Sri Lankan court’s verdict that sent veteran Sri Lankan journalist and columnist JS Tissainayagam to 20 years of rigorous imprisonment under the country’s anti-terror law.

“The incarceration and prosecution by the state and the court’s judgement have affected reporters and editors who question the government’s anti-terror campaign and practice independent journalism. The verdict is a setback to the freedom of press in South Asia,” SAMC Chairman N Ram and Secretary General Najam Sethi said in a statement. “The SAMC has consistently opposed all repressive anti-terror laws that target freedom of expression and the media. The Sri Lankan government should avoid misusing the anti-terror laws to silence peaceful critics. Such extreme punishment imposed on a journalist for writing an article and allegedly raising money for his magazine abroad is appalling. The whole episode is a clear and present danger to the freedom of expression in Sri Lanka,” the statement said.

The statement, issued by SAMC Regional Coordinator Hussain Naqi, called on Sri Lankan President Mahinda Rajapaksa to intervene in the matter as soon as possible to set Tissainayagam free. Tissainayagam had angered the Sri Lankan army and government by commenting in the North Eastern Monthly that “the inability to protect its citizens has caused Sri Lanka worldwide embarrassment”. In another piece, he spoke about the deteriorating humanitarian situation in Vakarai, a coastal town in Sri Lanka’s east, whose civilian population had been trapped in the midst of the war.

Tissainayagam, an ethnic Tamil who wrote in English and was a regular columnist, was arrested by an anti-terrorism division of police in March 2008. He was not formally charged or produced in court until August 2008, when he was booked under the Prevention of Terrorism Act (PTA).

Sunday, September 06, 2009

The International Federation of Journalists (IFJ) today condemned a 20-year jail term against senior Sri Lankan journalist J.S. Tissainayagam as "brutal and inhumane" and accused Sri Lankan authorities of abusing anti-terror laws to silence peaceful critics.

The High Court of Colombo today convicted Tissainayagam, a prominent Tamil journalist, of "causing communal disharmony" and "receiving money from Tamil Tiger rebels to pay for his website".

He was detained last year and later charged with inciting violence in articles in his magazine, the North Eastern Monthly, which has since closed. The landmark ruling makes Tissainayagam one of a handful of journalists in the world to be convicted of terrorism for the content of their journalism.

"This man has been victimised for no more than holding the Government to account and giving voice to legitimate if critical opinion," IFJ General Secretary Aidan White said. "The sentence is disproportionate, brutal and inhumane and is a chilling reminder of how dangerous Sri Lanka has become for independent journalists."

The IFJ is one of the international press freedom and rights groups that have been campaigning for Tissainayagam's release and for Sri Lanka to tone down anti-terrorism legislation which is being used against government critics.

On March 7, 2008, Tissainayagam was detained without charge by the Terrorist Investigation Division (TID) of the Sri Lankan police. At the time he was the editor of an online newspaper, OutReach.sl.com. He was held for more than five months until being charged with publishing and distributing a magazine containing material alleged to have brought the government into disrepute.

Earlier this year, United States President Barack Obama named Tissainayagam as an "emblematic example" of the "distressing reality" of courageous journalists who face intimidation, censorship and arbitrary arrest for their professional work.

"The IFJ is anxious over the welfare of Tissainayagam in prison," White said. "Sri Lankan authorities must ensure he is housed in a safe environment and has access to medical assistance for his deteriorating health."

The Colombo High Court found Tissainayagam guilty of inciting ethnic and racial disharmony, of printing and publishing such material, and of collecting money for the North Eastern Monthly from NGOs.

However, defence lawyers said there was no evidence of attempts by him to stir up religious, racial or regional conflict. He was being accused only because he is a Tamil, they said, and because of his criticism of government and state security forces. The charges against Tissainayagam and two colleagues, Jesiharan and Valarmathi, were laid under the PTA, a draconian and "temporary law" that has remained on Sri Lanka's statute books since it was introduced in 1979.

Since Tissainayagam's arrest, the IFJ has been concerned about his treatment in detention, including how he was tortured to make a confession. He was held without explanation for more than 150 days, during which time he was reportedly tortured and denied medical treatment. Court hearings were postponed arbitrarily and a human rights case lodged by his lawyers was not properly investigated.

The IFJ says the prosecution and conviction is symbolic of crumbling press freedom in Sri Lanka, where at least eight journalists have been killed since 2007. Others have been beaten, harassed, detained and threatened with death. Many journalists have been forced to leave the country for their safety.

"We will not give up our campaign for Tissainayagam," said White. "He should be released and this terrible injustice undone immediately."

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